EXHIBIT 10.42


 


AMENDMENT NO. 1 TO THE

AMENDED AND RESTATED FIVE YEAR REVOLVING CREDIT FACILITY AGREEMENT


 


Dated
as of June 25, 2003


 


AMENDMENT
NO. 1 TO THE AMENDED
AND RESTATED FIVE YEAR REVOLVING CREDIT FACILITY AGREEMENT among
Avaya Inc., a Delaware corporation (the “Borrower”), the banks,
financial institutions and other institutional lenders parties to the Credit
Agreement referred to below (collectively, the “Lenders”) and Citibank,
N.A., as agent (the “Agent”) for the Lenders.


 


PRELIMINARY STATEMENTS:


 


(1)                                  The
Borrower, the Lenders and the Agent have entered into an Amended and Restated
Five Year Revolving Agreement dated as of April 30, 2003 (the “Credit
Agreement”).  Capitalized terms not
otherwise defined in this Amendment have the same meanings as specified in the
Credit Agreement.


 


(2)                                  The
Borrower and the Required Lenders have agreed to amend the Credit Agreement as
hereinafter set forth.


 


SECTION 1.                                Amendments
to Credit Agreement.  Section 8.08(b)
of the Credit Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3, hereby amended
by replacing the phrase prior to the proviso “Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the
Required Lenders” with the phrase “None of this Agreement, any other Loan
Document or any provision hereof or thereof may be waived, amended or modified,
nor any Collateral (other than Inventory sold in the ordinary course of
business) released from the Liens created by the Collateral Documents, except
pursuant to an agreement or agreement in writing entered into by the Borrower
and the Required Lenders”.


 


SECTION 2.                                Release
of Certain Collateral.  By
execution below, the Required Lenders hereby agree to release from the Lien of
the Collateral Documents the following promissory notes made by Expanets, Inc.
in favor of the Borrower and the collateral security related thereto upon the
sale of such note and collateral by the Borrower:


 


(a)                                  upon the sale of such note and
collateral by the Borrower, a $125,000,000 secured promissory note, dated March 31,
2001, which currently has an outstanding principal amount of approximately
$27.2 million; and


 





















 


(b)                                 a
$15,000,000 promissory note and a $35,000,000 promissory note, each of which is
recorded in the Borrower’s financial statements at zero book value and the
Borrower believes has no fair market value.


 


SECTION 3.                                Conditions
of Effectiveness.  This
Amendment shall become effective as of the date first above written when, and only when the Agent shall have received
counterparts of this Amendment executed by the Borrower and the Required
Lenders or, as to any of the Lenders, advice satisfactory to the Agent that
such Lender has executed this Amendment.


 


SECTION 4.                                Representations and
Warranties of the Borrower The Borrower represents and warrants as follows:


 


(a)                                  It (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (iii) is qualified to do
business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not result in a Material Adverse Effect,
and (iv) has the corporate power and authority to execute, deliver and
perform its obligations under this Amendment.


 


(b)                                 The execution, delivery and
performance by the Borrower of this Amendment and the Loan Documents, as
amended hereby, to which it is a party, and the consummation of the
transactions contemplated hereby (i) have been duly authorized by all
requisite corporate actions and (ii) will not (A) violate
(1) any provision of any law, statute, rule or regulation (including,
without limitation, the Margin Regulations) or of its certificate of
incorporation or other constitutive documents or by-laws, (2) any order of
any Governmental Authority or (3) any provision of any indenture,
agreement or other instrument to which it is a party or by which it or any of
its property is or may be bound, (B) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or
(C) except for the Liens created under the Collateral Documents, result in
the creation or imposition of any lien upon any of the properties of the
Borrower or any of its Subsidiaries.


 


(c)                                  This Amendment has been duly
executed and delivered by the Borrower. 
This Amendment and the Credit Agreement and the Notes, as amended
hereby, are the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms.


 


(d)                                 No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the due execution,
delivery, recordation, filing or performance by the Borrower of this Amendment.


 


(e)                                  There are no actions or
proceedings filed or (to its knowledge) investigations pending or threatened
against it in any court or before any Governmental


 


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Authority or arbitration board or tribunal
which question the validity, enforceability or legality of or seek damages in
connection with this Amendment or the Credit Agreement and the Notes, as
amended hereby, or any action taken or to be taken pursuant to this Amendment
or the Credit Agreement and the Notes, as amended hereby, and no order or
judgment has been issued or entered restraining or enjoining it from the
execution, delivery or performance of this Amendment or the Credit Agreement and
the Notes, as amended hereby, nor is there any action or proceeding which
involves a probable risk of an adverse determination which would have any such
effect; (ii) nor is there as of the date hereof any other action or proceeding
filed or (to its knowledge) investigation pending or threatened against it in
any court or before any Governmental Authority or arbitration board or tribunal
which involves a probable risk of a material adverse decision which would
result in a Material Adverse Effect , except as provided in the Borrower’s
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2003,
or materially restrict the ability of it to comply with its obligations under
this Amendment or the Credit Agreement and the Notes, as amended hereby.


 


SECTION 5.                                Reference
to and Effect on the Credit Agreement and the Notes.  (a)  On
and after the effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import
referring to the Credit Agreement, and each reference in each other Loan
Document to “the Credit Agreement”, “thereunder”, “thereof” or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended by this Amendment.


 


(b)                                 The Credit Agreement and other
Loan Documents, as specifically amended by this Amendment, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed.


 


(c)                                  The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or the Agent
under the Credit Agreement, nor constitute a waiver of any provision of the
Credit Agreement.


 


SECTION 6.                                Costs
and Expenses.  The Borrower
agrees to pay on demand all costs and expenses of the Agent in connection with
the preparation, execution, delivery and administration, modification and
amendment of this Amendment and the other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Agent) in accordance with the terms of Section 8.04
of the Credit Agreement.


 


SECTION 7.                                Execution
in Counterparts.  This
Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
but one and the same agreement.  Delivery
of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.


 


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SECTION 8.                                Governing
Law.  This Amendment shall be
governed by, and construed in accordance with, the laws of the State of
New York.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


	
   

  	
  AVAYA
  INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.,
  individually and as Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [SIGNATURES OMITTED]

  
					



 


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